"What Should a Court Do When Faced with a 40-Year-Old Conviction Resting on Science That Has Now Been Wholly Discredited?"

A longish and interesting opinion by Justice Sotomayor, regarding the Court's decision not to review the matter for now (McCrory v. Alabama). According to Justice Sotomayor:

Petitioner Charles M. McCrory was convicted of murder in 1985 based on forensic bitemark testimony that has now been roundly condemned by the scientific community and retracted by the expert who introduced it at his trial.

For more, read the whole opinion.

Comments

[Archibald Tuttle]

The justice said, " I vote to deny this petition because
due process claims like McCrory’s have yet to percolate sufficiently through the federal courts."

If so, how did the question get to SCOTUS?

[Noscitur a sociis]

Through his application for a writ of certiorari from the final decision of the Alabama state courts.

[Mr. Bumble]

No offense intended Prof. but I think you've overloaded the docket with your posts this morning.

[John F. Carr]

Taken alone this part is familiar to courts and should not require percolation: "retracted by the expert who introduced it at his trial." It often happens that convicted defendants find a witness to recant, sometimes quite a few years later.

[David Nieporent]

It often happens that convicted defendants find a witness to recant, sometimes quite a few years later.

There is a big difference between a purported eyewitness saying, "Actually, I didn't see that" and an expert saying, "Actually, that science that I thought was right has now been disproven."

[Mr. Bumble]

This is not an isolated incidence of the "science" later later being disproven. How does this "science" come to be accepted?

[TwelveInchPianist]

People get paid more to say that they know stuff than to say that they don't know stuff.

[Publius_2020]

It wasn't really "science" to begin with, and the rules in days-of-old were not designed to sniff that problem out. Daubert is only 30 years old.

[Rev. Arthur L. Kirkland]

Mr. Carr doesn’t strike me as the kind of person who cares much about criminal defendants who are not ardent conservatives. More a “law and order” guy — until a Republican elected official or an insurrectionist gets indicted.

[Noscitur a sociis]

According to Justice Sotomayor’s summary, “the [trial] court held that there was enough circumstantial evidence of McCrory's guilt at trial outside of Dr. Souviron's testimony that the jury still would likely have convicted.”

Seems like that might merit further discussion!

[TextFirst]

Yeah, some real lede-burying. If there's ten pieces of evidence and one of them turns out to be unreliable, that doesn't change the bottom line conclusion.

You find this a LOT in purported actual innocence cases. The evidence for guilt is overwhelming but the lawyers emphasize that one witness recanted or there was a misstatement about one fiber, etc.

[Joe_dallas]

The todd willingham case from corsicana tx 1991 is an example. Though that case has lots of conflicting claims, conflicting facts, so difficult to determine whether the person was innocent or guilty

[SRG2]

Perry's interference in the investigation by the Texas Forensic Science Commission is suggestive of Willingham's innocence.

[LGDaub]

Thank you. I logged in to ask if that was so about other evidence, and you answered my question.

[Brett Bellmore]

I guess that depends on whether they want people to think they actually care about justice, or if minimizing their own workload really is the only thing they care about.

[Noscitur a sociis]

I’m not sure I follow. The court in this case held an adversarial hearing (notwithstanding what could have been a procedural default) where the defendant presented the evidence about the unreliability of the scientific evidence. The trial court then considered the case and found that even without it, the remaining evidence would have supported the conviction. The defendant then appealed that finding. What about this process do you think suggests judges focused on “ minimizing their own workload”, and how would a court system that prioritized justice (or the public perception of justice?) look different?

[Brett Bellmore]

I was commenting on the question asked in the title. If the immediate case isn't such a case, that's another matter; But if the conviction really rests on discredited evidence, rather than the discredited evidence having been considered surplus?

Then justice demands overturning it. Reducing workload counsels against doing so.

[WuzYoungOnceToo]

But if the conviction really rests on discredited evidence, rather than the discredited evidence having been considered surplus?

Given that…

Second, the court held that there was enough circumstantial evidence of McCrory’s guilt at trial outside of Dr. Souviron’s testimony that the jury still would likely have convicted.

…Sotomayor’s claim that McCrory’s conviction was “resting on” the now discredited bite-mark “science” would appear to be yet another misrepresentation by her.

[Dr. Ed 2]

A lot of men were convicted of sexual child abuse in the late '80s and '90s on totally fabricated science -- and SCOTUS is eventually going to have to rule on that.

[Brett Bellmore]

Gotta break it to you, but, no, they are NOT eventually going to have to rule on that. They're perfectly capable of just letting those guys rot and die off, and never touching that issue until it's moot.

[Roger S]

The convictions continue. Harvey Weinstein and Jerry Sandusky were convicted of sex crimes with fabricated science.

[JoeFromtheBronx]

"A Texas court on Monday set an execution date for Robert Roberson, who was sentenced to death in 2003 for killing his 2-year-old daughter but has consistently challenged the conviction on the claim that it was based on questionable science."

https://www.texastribune.org/2024/07/01/robert-robertson-shaken-baby-texas-execution/

[Joe_dallas]

Based on what I have read on the case and the concept of “shaken Baby syndrome”, I would tend to believe it was a wrongful conviction, ie very little forensic evidence that would support the theory of cause of death.

[Dr. Ed 2]

Elizabeth Woodward....

[Roger S]

I agree that shaken baby syndrome is junk science, but there is a lot of other evidence against Roberson.

[Gasman]

It seems that courts are poor assessors of what might be settled science.
Bitemark evidence, like polygraph, has never passed the simple hurdle of double blind testing, where the individual making the assessment has no ability to know anything of the sample along with an abundance of controls .
It is always insufficient to say that a sample is consistent with the defendant. One must be able to find the match from a hundred samples, one of which might be the defendant’s.

If a test cannot stand up to a blinded assessment, then it is junk. It is easy to reveal junk science using bona fide science tecniques.

[SRG2]

If a test cannot stand up to a blinded assessment, then it is junk. It is easy to reveal junk science using bona fide science tecniques.

Yup. Radley Balko has written fairly extensively about this.

[Josh R]

I guess that means no relief for Oscar Finch.

[CJColucci]

That's the first thing I thought of.

[F.D. Wolf]

As mentioned in the opinion, bitemark evidence was used in the trial of Ted Bundy in 1979. (In fact, the bitemark "expert" in this case was the same one from the Bundy trial.) I had known that because I remember it from the "gotcha" moment of a 1990 episode of Columbo.

[Publius_2020]

Bite marks. Hair evidence. Arson/fire testimony. And those are just obvious examples where things were purported to be "real science," but were mostly BS. That's before we get to the pseudo-science testimony from psychologists.

[Rev. Arthur L. Kirkland]

Educated, smart people don't trust Alabama justice today. 1985? It was probably similar to throwing darts while blindfolded.

STATES RANKED BY EDUCATIONAL ATTAINMENT
(includes territories; 52 jurisdictions ranked)

HIGH SCHOOL DIPLOMA
Alabama 45

COLLEGE DEGREE
Alabama 47

ADVANCED DEGREE
Alabama 39

Remember that these totals give credit to backwater religious schooling; imagine Alabama's performance if only legitimate education were considered. That bump into the thirties for advanced degrees probably was caused by the federal government jamming a bunch of out-of-state rocket scientists into Alabama for no sound reason.

[Jerry B.]

Prof. Volokh gets a mention in the Washington Post. It’s pretty far down in the story, though.

https://www.washingtonpost.com/education/2024/07/02/northwestern-university-faculty-lawsuit-affirmative-action/